An interesting aspect of Sierra Club v. EPA, the Clean Air Act case I noted yesterday, is that the underlying regulation at issue was adopted under the Clinton Administration. The Bush Administration made some modifications of its own, largely affecting reporting and enforcement of the rule, but the underlying "SSM" exemption (for startups, shutdowns, and malfunctions) was created in 1994. Here's an excerpt from the Washington Post story on the decision:

The agency created the exemption in 1994, and Bush administration officials broadened the interpretation of the provision over time. This made it subject to judicial review, and a coalition of advocacy groups including the Environmental Integrity Project, the Sierra Club, the Louisiana Environmental Action Network, the Coalition for a Safe Environment and Friends of Hudson challenged the provision's legality in court.

"What they did is take a bad provision and turn it into an almost complete barrier to enforcement," said Earthjustice attorney Jim Pew, who argued the case on behalf of the coalition. "This was an attempt to make all of the air-toxics laws unenforceable, and they almost got away with it."

The SSM exemption's history created an interesting wrinkle in the case. It was clearly too late for environmentalist groups to challenge the rule directly, so they hitched on to the Bush Administration's more recent interpretations to secure judicial review. Even so, it's not so clear the court had jurisdiction to review the underlying rule in this case. This was a key point in Senior Circuit Judge Randolph's dissent:

According to Sierra Club, EPA’s rulemakings in 2002, 2003, and 2006 rendered enforcement of the 1994 startup, shutdown,
and malfunction regulations more difficult. Even if true, that could hardly have amounted to agency “action” re-promulgating the 1994 regulations, which is what § 7607(b)(1) requires as a prerequisite for judicial review. After all, Sierra Club’s complaint is not that the 1994 regulations are now hard to enforce; it is instead that the 1994 regulations are invalid and always have been. The recent rules did not alter the exemption for startup, shutdown, and malfunction events. The new rules simply modified requirements for each source’s plan regarding implementation of the duty to minimize pollution during the exempt periods.

Thus, Randolph concluded, the Sierra Club could only challenge the Bush Administration revisions, and not the underlying exemption. Based on my initial reads, I think Judge Randolph is right. So, while I am inclined to think the Sierra Club was correct on the merits, and that the SSM exemption contravenes the Clean Air Act, I doubt the D.C. Circuit had jurisdiction to consider and overturn the underlying rule.

So, while I am inclined to think the Sierra Club was correct on the merits, and that the SSM exemption contravenes the Clean Air Act, I doubt the D.C. Circuit had jurisdiction to consider and overturn the underlying rule.

Sorry for my ignorance, but if an agency promulgates a rule that contradicts the statute and no one challenges it within 60 days, then there is no judicial remedy to the continuing violation and the executive gets to keep the rule indefinitely?

A comment on the merits from an engineer in the relevant industry: my perception is that the air toxics rule is an attempt by lawyers to criminalize engineers...an excellent way to drive manufacturing from the U.S. Now just send us a bailout!

Not exactly. If the statute in question precludes judicial review of a regulation after a set period, a regulated entity could still challenge the rule in the context of an enforcement action. Another possibility, as noted in Randolph's opinion, is to file a petition with the EPA asking it to revise/repeal the regulation and -- assuming the EPA keeps its rule -- then challenge the agency's rejection of the petition. This certainly makes it more difficult (and time-consuming) for citizen groups to challenge rules, but Congress has the authority to put a tight time limit on judicial review of regulations, and it has done so in the Clean Air Act.

It seems there's a double standard them -- if you are a regulated entity, you can take a bite whenever you want but if you are the Sierra Club, you have to nab it within 60 days. Of course, Congress can write whatever standards they want into their laws but this particular instance seems quite biased indeed.

I doubt it. A broken clock is right twice a day -- at least in the analog world.

And these cases are seldom about whether real harm of serious extent that could conceivably be remedied without driving the economy off a cliff (too late as Marty Feldman once said in a slightly different context). So this isn't an argument that the Sierra Club was right that the world would end if the SSM rule were not vacated, rather it was an argument about whether the rule violated the statute.

It seems there's a double standard them -- if you are a regulated entity, you can take a bite whenever you want but if you are the Sierra Club, you have to nab it within 60 days.

Waaah. I don't mean to be just plain impolite, but you're complaining about one of the basics of jurisprudence, standing. So it isn't at all unusual, or suspicious, that someone who is directly regulated by a rule as applied should have broader standing to challenge that rule than those who contest it in the abstract.

If anything, the loons have far too much access to the courts to make policy there instead of in the sausage factory where it is supposed to be made. The point is, if the Sierra Club doesn't like a rule, it can lobby Congress for a law invalidating the rule.

The way it really ought to be, the executive shouldn't be making the rules anyway, but you'll never see the Sierra Club forcing that issue!

The issue is pollution of the air. I breath air. What is the problem with my standing now?
/end{impoliteness}
The entire point of environmental law is that there are goods such as clean air that cannot be enclosed. There are 300 million stakeholders in our environment may not individually suffer harm to merit standing, but collectively they certainly do. It becomes a classic problem of organization when you have a small number making a large gain at the expense of a very large number taking a very small loss. This is why we still have sugar subsidies and tariffs on Vietnamese catfish.

If anything, the loons have far too much access to the courts to make policy there instead of in the sausage factory where it is supposed to be made.

On the other hand, executives from both parties have a pretty poor record of faithfully executing the laws that Congress wrote (maybe they didn't read Art II?). If Congress passes a law that mandates X and the executive refuses, what good will it do to lobby Congress for another law mandating X?

42 USC §7607 is ambiguous. On the one hand, 42 USC §7607(b)(2) says that determinations under 42 USC §7607(b)(1) are final:

(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.

On the other hand, 42 USC §7607(c), "Additional evidence," says that additional evidence can be adduced later if "there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator":

(c) Additional evidence
In any judicial proceeding in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as to (sic -- "to" should probably not be there) the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original determination, with the return of such additional ­evidence.

Judge Randolph's dissent said,

According to Sierra Club, EPA’s rulemakings in 2002, 2003, and 2006 rendered enforcement of the 1994 startup, shutdown, and malfunction regulations more difficult.

The 2002, 2003, and 2006 rulemakings were of course unknown at the time of the original 1994 rulemaking and maybe these later rulemakings could qualify as "additional evidence" under 42 USC §7607(c) -- I don't know.

Some other points --

42 USC §7607(b), "judicial review," and 42 USC §7607(d), "rulemaking," appear to be overlapping and inconsistent in some respects. However, in general, 42 USC §7607 applies only to EPA rulings that have gone through a formal rulemaking procedure including publication in the Federal Register and a public comment period and a public hearing. Other EPA actions and inactions can possibly be challenged under the following statutes:

(1) The "citizen suit" statutes give affected citizens standing to sue to challenge (1) a violation of environmental laws or regulations by a private entity or (2) the failure of the US EPA or other environmental agency to perform a non-discretionary duty. 60-days advance notice of intent to sue is absolutely mandatory -- the US Supreme Court strangely ruled that failure to give the 60-day notice means that the lawsuit must be refiled from scratch (Hallstrom v. Tillamook County). The citizen suit statute for the Clean Air Act is 42 USC §7604.

(2) The Administrative Procedures Act of Title 5 of the US Code -- some statutes of the APA are here and here. 42 USC §7607(d), "rulemaking," specifically bars application of the following APA provisions to actions under 42 USC §7607(d):

The provisions of section 553 through 557 and section 706 of title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies. This subsection shall not apply in the case of any rule or circumstance referred to in subparagraphs (A) or (B) of subsection 553(b) of title 5.

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